Dr. Shashi Tharoor, MP from Thiruvanathpuram, recently tabled a private bill in the Lok Sabha, initiating a discussion around sexual consent, marital rape, access to sanitary napkins and abortion rights of women in the parliament. While this is indeed a laudable effort by Dr Tharoor, the bill—Women’s Sexual, Reproductive and Menstrual Rights Bill 2018—has overlooked several aspects. The Bill addresses the elephant in the room, namely, marital rape and proposes making it a criminal offence, this is the first time in the history of Indian politics that a politician has raised concern over rape within a marriage. The bill, though, fails to encompass menstrual rights of women in a holistic manner. It talks about abortion rights of women, but is silent over reproductive coercion that women face often in the country.

SEXUAL RIGHTS IN THE BILL

Consent without a tag

The Bill proposes the deletion of Exception 2 to Section 375 of Indian Penal Code, which states that sexual intercourse by a man with his own wife is not rape. In the past few years, several human rights activists have raised their voice against marital rape but neither the government nor the judiciary have supported criminalising this act. Dr Tharoor’s bill seeks to restore a married woman’s autonomy over her body and sexual rights and ensures her sexual consent is not presumed.

Dr. Archana Patil, a crusader of rural healthcare in Maharashtra, said that the Bill needs to sensitise women about what marital rape means and about sexual consent. “If women don’t know about marital rape then how does one begin to address it. And if I complain against my husband then how do I feel secure after it?” There needs to be proper rehabilitation for women who do take the step of complaining against their husbands—this particularly impacts the marginalized community of women who face marital rape on a daily basis.

According to Sexuality Rights Activist, Pallavi Barnwal, marital rape should be a ground for divorce and not a criminal act.

The Bill promotes the idea that a woman’s sexual autonomy lies primarily in her consent. It means that anything other than her agreement should not be presumed as grounds for her sexual consent. It aims to shift society from a ‘No means No’ regime to a ‘Yes means Yes’ mindset where a woman articulates her sexual desire rather than submitting to sex under duress. While this does hold ground, but we also need to establish the validity of a woman’s ‘No’—feeble or otherwise—concretely, so when women do not consent to sex, their No is not analysed by the courts later for its volume or strength.

The Bill proposes to amend the name of the Medical Termination of Pregnancy Act 1971 to ‘Legal Termination of Pregnancy Act’ so doctors in rural areas don’t fear arrest under Section 312 of the IPC. Section 312 punishes anyone conducting voluntary miscarriage including the woman herself.

It provides all women with right to terminate pregnancy until 12thweek merely by request. Then it gives conditional rights to women to terminate pregnancy until 20th week unless it is a case of female foeticide. The factors in these cases would involve a risk to the woman’s life, threat or grave injury to her or development of abnormality in the foetus.

The Bill has extended the right to terminate pregnancy between the 20thand 24th week of pregnancy only to rape survivors, women with disability and women belonging to any other related categories.

The fact that rape survivors will benefit from the Bill which would allow them to terminate their pregnancy up to the 24th week is worth noting. However, the Bill needs to widen its scope to encompass reproductive coercion in the periphery, given that this leads to forced pregnancies and abortions among women. There is no law that penalizes men who coerce women’s reproductive rights. Reproductive coercion involves acts like hiding, withholding, or destroying a partner’s birth control pills or removing contraceptive patches, rings or IUDs. Partners also intentionally break condoms or remove a condom during sex, an act known as stealthing. In some cases, the partner doesn’t withdraw during an intercourse when that was the agreed-upon method of contraception. Reproductive coercion is a legitimate crime and the government needs to formulate laws against it too.

MENSTRUAL RIGHTS

Dr Tharoor’s bill propagates the idea that women will get their menstrual rights if schools and public authorities start providing women with sanitary pads free of cost to any woman who just pays a visit to the facility. The Bill aims to equate access to sanitary napkins with the right to access to water, and thus eliminate the stigma. While this is indeed a welcome proposal, it bears to be kept in mind that providing free sanitary napkins does not incorporate all the sections of the society and so it cannot fully wipe out the stigma. Secondly, when we still have and promote archaic traditional rituals that reinforce the stigma of menstruation making a woman impure, we can never establish a strong base of liberation from it. The bill should address these stigmas and seek to outlaw the practice of menstrual untouchability in civil society.

Access to products could just be one part of dealing with the stigma but not the whole picture. It would be great to have free access but it is not a priority at this point

Thirdly, sanitary products for menstruation does not equate to sanitary napkins while it could be hugely popular. The environmental concerns against sanitary napkins are huge. Therefore the Bill must incorporate a provision that improves knowledge of people about menstruation especially young girls in a non-patronizing manner by including it in the curriculum of children as a life skill and not as a chapter in Biology. Menstrual Rights activist Sharmada Shastry states, “We need to talk to children about puberty, biological changes, emotional changes and particularly how to negotiate adolescence within the education system.”

“Also access to products could just be one part of dealing with the stigma but not the whole picture. It would be great to have free access but it is not a priority at this point,” added Shastry.

While the Bill raises a strong voice in favour of women’s sexual autonomy, menstrual rights and abortion rights, if we want positive results across India then we need to have comprehensive provisions which impact all sections of the society rather than just a few privileged who understand the terms.

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